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Synopsis

Jamiat Ulama-I-Hind has moved Delhi High Court seeking impleadment in the Public Interest Litigation filed by Advocate Ashwini Kumar Upadhyay challenging constitutional validity of the Waqf Act, 1995.

The High Court on Friday asked Advocate Ashwini Upadhyay to respond to the impleadment application filed by Jamiat Ulama-I-Hind as the same has been objected to by Upadhyay.

A bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad has directed the response to be filed before November 4, 2022.

The PIL before the Delhi High Court challenges the validity of Sections 4, 5, 6, 7, 8, 9, 14 of the Waqf Act, 1995 and seeks directions to the Central Government or Law Commission of India to draft a ‘Uniform Code for Trust-Trustees and Charities-Charitable Institutions’.

Today, while objecting to the impleadment application, Upadhyay submitted, "This organization says that Yakub Memon was hanged, they support triple talaq...This is a separatist organization."

The bench has also issued notice to Central Waqf Council.

The impleadment application submitted that the PIL has been framed in a manner that seems to suggest that the Legislature is subordinate to the Judiciary rather than being equal pillars of the sovereign, socialist, secular, democratic, republic of India.

"By the publicly available information of the petitioner, it seems that the petitioner is in the habit of filing frivolous petitions. On at least two occasions, no less than the Hon'ble Chief Justice of India, himself seems to have rebuked the present petitioner for filing frivolous petitions," the application added.

The application states there are statutory Waqf Boards in each state of the country and the said Boards are core to the entire institution of Waqf in the country. "The impact of the prayers in the present Petition shall cause upheaval in the established system of Waqf throughout the country," it read. 

Background:

It may be noted that the petitioner, Advocate Ashwini Kumar Upadhyay, has challenged the validity of provisions of the Waqf Act, 1995 on the ground that they are "unfair" and "arbitrary", as there are "no similar laws for any other religious community in India". His petition inter alia contends that the Act is antithetical to secularism in India.

Other arguments made by the petitioner are as follows:

• A Waqf has not been envisaged anywhere in the Indian Constitution.
• The Waqf Act, 1995, if made to protect religious minorities, must be in consonance with Articles 14 and 15 of the Constitution and must cover other religious minorities such as Jains, Buddhists, Sikhs, Christians, etc, and not be made solely for Islam.
• The provisions of the Waqf Act, 1995 grant special status to Waqf properties and give the Waqf board unbridled powers, while denying such powers to other religious institutions such as Trusts, Mutts, Akharas, etc.
• There is a lack of safeguards against the properties of Hindus, Jains, Buddhists, Sikhs, and other communities, from inclusion in the list of Waqf properties issued by the Waqf Board. This is because what property constitutes Waqf property is determined by the Waqf Board, subject to the order of the Waqf Tribunal.
• While Waqf Tribunals have been given special rights under Sections 54-55 of the Waqf Act, 1995, Trustees, Managers, Shebaits, Mahants and other similarly situated persons managing and administering other religious institutions and properties do not enjoy similar rights and power. Thus, the Waqf Act, 1995 is against the right to equality guaranteed under Article 14 and 15 of the Constitution of India

Case Title: Ashwini Kumar Upadhyay Vs. Union of India & Ors.